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of <h1>Section 36(1)(va): PF/ESI deduction allowed only if paid by statutory due date; burden on assessee to prove.</h1> <h3>Bentex Control And Switch Gear Co. Versus DCIT, Circle-49 (1), Delhi.</h3> ITAT DELHI disallowed deduction for PF/ESI contributions under section 36(1)(va), holding compliance must be by the statutory 'due' date rather than the ... Disallowing assesse’s PF/ESI contribution u/s 36(1)(va) - HELD THAT:- Suffice to say, case law Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT (LB)] has settled the issue against the assessee and in revenue’s favour by holding that the compliance to section 36(1)(va) ought to be as per the “due” date of the corresponding statute than that of a return u/s 139(1) of the Act. Rejected accordingly. PF/ESI deposits corresponding to actual salary disbursement date and in light of tribunal’s order in the case of Novelvox Software’s India Private Limited [2024 (12) TMI 1618 - ITAT DELHI] that such a due date has to be in light of the actual payment only. Faced with this situation, hereby restore this limited issue for AO’s afresh appropriate adjudication within three effective opportunities of hearing subject to rider that it shall be the assessee’s responsibility only to plead and prove the relevant facts in consequential proceedings. Appeal against CIT(A) order in proceedings under section 143(1) for AY 2017-18 challenges disallowance of PF/ESI contribution of Rs. 24,49,696 under section 36(1)(va). Reliance placed on Supreme Court authority Checkmate Services Pvt. Ltd. v. CIT, which held that compliance to section 36(1)(va) must be as per the 'due' date of the corresponding statute than that of a return under section 139(1). Consequently, the disallowance was sustained. The assessee relied on a paper book showing PF/ESI deposits matched to actual salary disbursement and cited a tribunal decision in Novelvox Software's India Pvt. Ltd. (ITA no. 3757/Del/2023) that due date should be determined in light of actual payment. The tribunal restored this limited issue to the Assessing Officer for fresh adjudication within three effective hearings, subject to the assessee's burden to plead and prove relevant facts. Appeal partly allowed for statistical purposes. Order pronounced 09.01.2025.
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